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Friday, June 26, 2009

NSW Government Information Act now law waiting for commencement

The NSW Legislative Assembly yesterday accepted the minor amendments to the Government Information (Public Access) Bill passed by the Legislative Council, so the new law is done and dusted, save for a commencement date. The Act as passed by Parliament is the Bill as introduced with the amendments referred to in this Hansard extract of Assembly debate:

Consideration of the Legislative Council amendments.

Schedule of amendments referred to in message of Thursday 25 June 2009

No. 1 Page 26, clause 53 (2), line 10. Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.".

Mr CHRIS HARTCHER (Terrigal) [10.50 a.m.]: The Government Information (Public Access) Bill 2009 was introduced by the Premier earlier this week. It was forwarded to the Legislative Council last night where a series of amendments were moved by the Greens and carried by that House. It is not without significance that the bill is being considered in this place today when the news media carries a story that for the first time a report by the Bureau of Crime Statistics and Research prepared by Dr Don Weatherburn has been suppressed by the Government as it relates to juvenile crime figures. The extraordinary situation we have is that, on the one hand, the Premier tells Parliament that he will widen the areas the public are entitled to access to obtain government information and, on the other hand, his Cabinet suppresses for the first time since the bureau was established in 1988 a report on juvenile crime. Dr Weatherburn is quoted in the newspaper this morning as saying, "This is the first time this has ever happened."

That juxtaposition must be considered a test of the Government's sincerity. Notwithstanding that and the comments of the Leader of the Opposition, who led for the New South Wales Liberals-Nationals in debate on the bill, the Coalition accepts and supports these amendments. The amendments are designed partially to try to obtain some degree of coherence and efficiency in the extraordinary billing system that government departments use to respond to freedom of information requests. Requests for information are repeatedly responded to with a letter stating that the information will take so many hundreds of hours to collect and will cost so much per hour, and therefore the applicant can forward thousands of dollars on account—and if more money is required the department will debit the applicant further. In many cases there is every reason to suspect that the response is sent simply because freedom of information officers are looking for a means to frustrate the application. Being unable to frustrate the request on statutory grounds, as outlined in the Freedom of Information Act, the officers seek to frustrate the process by making it cost prohibitive. The amendments moved by the Greens are an attempt to remove as far as possible the tactic of making applications cost prohibitive. The first amendment is to clause 53 (2), line 10 on page 26 of the bill. The amendment states:

Insert "The agency's searches must be conducted using the most efficient means reasonably available to the agency." after "received.

This amendment requires the agency to provide the information efficiently. If the agency's files are structured so that certain words can be entered into the computer system and the files are located, it should take 10 to 15 minutes. It should not require a manual search of the entire filing system. Yet many agency billing accounts refer to an exhaustive manual search of an entire filing system, not just the specialised system relating to the application. The second amendment is to clause 64 (2), line 17 on page 33 of the bill. It states:

Insert "that is necessary" after "amount of time".

With respect to this amendment, the officer cannot just say that the search will take a certain amount of time; he or she must be able to establish that the time frame is necessary. The onus is on the officer to demonstrate a pre-requisite reason for the time taken. The officer cannot just assert that it will take a certain amount of time and therefore demand a large payment, at $30 or $35 an hour. The third amendment is to clause 64 (2) (a), line 19 on page 33. It states:

Insert "efficiently" after "dealing".

Again, this amendment goes to the crux of the matter. Clause 64 refers to an officer in an agency dealing with the application. The specific purpose of this amendment is to insert the word "efficiently". The officer must deal with the request efficiently, not in a long, drawn-out, lackadaisical manner that, once again, sends costs soaring. Over the past 15 years of this Government applications for freedom of information have repeatedly been met with not a denial but a huge account bill. The process of freedom of information requests has been frustrated and distorted by enormous billing accounts. Certain news media organisations may be able to afford to pay tens of thousands of dollars for freedom of information requests, but of course ordinary citizens cannot afford to pay those amounts—and nor can the New South Wales Liberals-Nationals. The Opposition and the citizenry are stymied by the current process. Perhaps news media organisations are not stymied, but even they complain validly about the costs of freedom of information applications. At last we have an attempt to bring the freedom of information application costing system under control. Accordingly, the New South Wales Liberals-Nationals support the amendments. As the Leader of the Opposition outlined in the agreement in principle debate, further matters about accessing government information need to be addressed, but now is not the appropriate time to do so.

Mr BARRY COLLIER (Miranda—Parliamentary Secretary) [10.57 a.m.], in reply: The Government agrees with the amendments. Despite the rant by the Leader of the Opposition in this House during the debate on the Government Information (Public Access) Bill 2009, the amendments were moved by the Greens and not the Opposition. The whole purpose of his rant was to tell us that he "expects to win the 2011 election"—he probably expected to win the 2007 election, but that did not happen. Such is the arrogance of the Leader of the Opposition and also the member for Terrigal, judging from his recent outburst in the House. This is landmark legislation. The upper House in performing its scrutiny function has arrived at amendments that are acceptable to the Government. I commend the amendments to the House.

Question—That the motion be agreed to—put and resolved in the affirmative.

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About Me

Peter Timmins is an Australian lawyer and consultant who works on FOI and privacy protection issues in Sydney, NSW. He has Arts and Laws (Honours) degrees
from the University of Sydney, and has been involved in the FOI field for 25 years.Peter is an experienced public speaker and commentator. See In the News and Testimonials, and Career Summary for more details on background and experience.